Racial Slurs and Retaliation Drive EEOC to File New York Lawsuit

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Is it ever okay for a supervisor to use a racial slur at work? Should an employer be allowed to fire you in retaliation for filing a harassment complaint? The Equal Employment Opportunity Commission (EEOC) recently drew its line in the sand against these forms of racial discrimination by filing a lawsuit in New York’s federal district court.

In this blog I will review the recently filed lawsuit, EEOC v. A & F Fire Protection Co., Inc. in the U.S. District Court for the Eastern District of New York. I will summarize Title VII of the Civil Rights Act as to racial discrimination and retaliation, and explain what made A & F’s conduct cross the line for the organization.

Company Supports Racial Slurs Against Black and Hispanic Employees

Black and Hispanic employees of the sprinkler installation company, A & F Fire Protection Co. Inc., located in Massapequa, New York, came to the EEOC with very specific and disturbing complaints. They said their supervisors and co-workers were calling the minority workers the “N-word”, “spics”, “jigaboos” and “wetbacks”. The company knew this was happening, according to the complaints, and refused to step in to protect its employees from racial harassment and discrimination.

Instead of addressing the racism and bigotry happening among its employees, the EEOC alleges the Long Island-based company retaliated against the minority workers who raised the issue, firing them or forcing them to quit. According to the complaint, when the company received notice that two EEOC charges had been filed against it, the owner instructed the complaining workers’ supervisor to fire them. The supervisor refused, and the company retaliated against him as well.

The EEOC attempted pre-suit conciliation. When no settlement could be reached, it filed a lawsuit in the Eastern District of New York on behalf of the employees for back wages, compensatory and punitive damages, and changes to the company’s employment policies to prevent future harassment.

Title VII and Racial Discrimination

Title VII of the federal Civil Rights Act makes it illegal for an employers to discriminate based on a person’s race, color, or national origin (among other protected traits). When racial harassment happens at work, whether by supervisors or co-workers, an employer is legally required to take reasonable steps to stop the behavior. Depending on the situation this may include changes to or enforcement of company policy, discipline against the harassers, or reassignment of the parties involved.

While racial slurs like those used at A & F Fire Protection Co. Inc. are not the only form of racial discrimination, they can easily create a hostile working environment that violates the law. EEOC Trial Attorney Kirsten Peters said in a statement:

Federal courts have held that even one utterance of a racial slur by a supervisor in the workplace can constitute legally actionable harassment. In this case, the use of racial slurs was a regular occurrence. Employers cannot permit widespread harassment of this sort to occur.

EEOC New York District Office Regional Attorney Jeffrey Burstein added:

The use of racial slurs in the workplace is unacceptable. . . . The abuse was so pervasive in this case that its tolerance was especially troubling. Upon learning of racial harassment in the workplace, it is an employer’s obligation under the law to ensure that it does not continue.

Retaliation for EEOC Complaints

When A & F employees asked their company to address the racial slurs being thrown around at work they faced retaliation for raising the issue. This kind of retaliation is illegal under Title VII (and many other anti-discrimination laws on the state and federal level). An employer may not discipline, punish, or make employment decisions about a worker who:

  • Speaks to a supervisor or manager about discrimination or harassment
  • Refuses orders that would result in discrimination
  • Registers internal complaints about racial slurs or a hostile working environment
  • Files an EEOC charge, complaint, or lawsuit
  • Acts as a witness or answers questions during an internal or EEOC investigation.

This is true even if the allegations turn out to be false, or the person incorrectly believes that the behavior is illegal racial discrimination.

However, all too often employers facing EEOC investigations resort to retaliation in an effort to remove the problem. It often demonstrates that the biases behind the statements exist at even the highest levels of the organization. When that happens, it creates a new Title VII claim for the targeted employees and only compounds the company’s problems. EEOC New York District Office Director Kevin Berry explains:

An employer only makes a bad situation worse and violates federal law when it retaliates against an employee for raising concerns about discriminatory behavior. Preventing retaliation against employees who come to the EEOC for help is one of the agency’s top priorities.

Racial discrimination and retaliation are unfortunate realities for many American workers. But employees do not have to put up with this kind of hostile work environment. Whether through the EEOC or a private Title VII lawsuit, they can see changes at work and be compensated for their suffering, time, and trouble.

Whether you are facing racial slurs, retaliation, or other, more subtle forms of racial discrimination at work, the employment discrimination attorneys at Eisenberg & Baum, LLP, based in New York City, are here to help. We will meet with you to review your claims, help you choose the best course of action, and see it through to the end. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Is an Employer Responsible for Sexual Harassment by Its Employees?

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When many people think of sexual harassment in the workplace, it brings to mind coercive bosses and oppressive business owners taking advantage of younger workers beneath them. But what about when the harasser is a coworker? Is an employer responsible for sexual harassment by its employees?

In this post I will discuss whether an employer can be held liable for sexual harassment or discrimination by its employees. I will explain when an employee can sue under federal law for the behavior of his coworkers or supervisors. And I will lay out what an employee should do if she wants to hold her employer responsible for sexual harassment committed by its employees.

The Civil Rights Act Protects Employees Against Sexual Harassment

Title VII of the federal Civil Rights Act is designed to protect American employees against discrimination and sexual harassment in the workplace. It gives workers the ability to file complaints with the Equal Employment Opportunity Commission (EEOC) or in federal court when inappropriate sexual advances affect a person’s employment.

Legally speaking, sexual harassment takes two forms:

  • Quid pro quo situations where an employer makes employment decisions based on an employee’s willingness to engage in sexual conduct
  • Hostile work environment claims where an employee’s coworkers or supervisors make repeated sexual statements or advances that are so severe that a reasonable person would find them inappropriate

In some cases, sexual harassment can also lead to retaliation claims, when an employer decides to remove the source of sexual harassment complaints, instead of the person committing the inappropriate behavior.

In either case, Title VII entitles the employee to a variety of financial and practical remedies, depending on the claimant’s circumstances and desired outcome:

  • Reinstatement into the same or similar position
  • Transfer to a different unit or shift
  • Removal or transfer of the offending employee or supervisor
  • Payment for lost wages, both past and future
  • Reimbursement for the costs of finding replacement employment
  • Punitive damages in some cases

Is an Employer Responsible for Sexual Harassment by Its Employees?

Sexual harassment is often caused by a desire to exert power and control over another person. In a traditional case, this is usually done by a boss, supervisor, or manager against an subordinate. In these cases, Title VII provides a clear path to recovery. When the harasser has the ability to significantly change the employee’s employment status, the United States Supreme Court has said the employer can be held directly responsible if those decisions are motivated by a person’s sex or sexuality.

But what about when the harasser is just a co-worker? A 2013 Supreme Court decision, Vance vs. Ball State University, 133 S.Ct. 2434, says that an employer will not automatically be responsible for a coworker’s independent intentional act. An employer is generally liable for actions done as part of the job, but discrimination and harassment aren’t part of anyone’s job description. According to the Court, an employee trying to hold an employer responsible for sexual harassment by its employees will have to do more than show that the behavior was offensive and happened at work.

Instead, if the sexual harassment didn’t involve a negative employment action, like hiring, firing, shift assignments, promotions, or pay raises, the employee must show that the employer was negligent in response to complaints. In other words, the company must have failed to prevent harassment it knew (or should have known) was happening on its dime.

For example, in September 2017, the EEOC sued coffee manufacturer Massimo Zanetti for sexual harassment and retaliation after the company allegedly fired an employee rather than respond to her complaints. LaToya Young was employed at the company’s Suffolk, Virginia roasting facility. After only two weeks of employment, a male co-worker began harassing her, asking for sexual favors, and making crude comments and gestures. The EEOC says Young filed three complaints about the behavior, but the harassment continued. Soon after her third complaint, Young was fired for alleged performance issues. The EEOC sued saying this was retaliation for Young’s sexual harassment complaints, which Massimo Zanetti had negligently failed to address.

What an Employee Should Do When Faced By Sexual Harassment by Co-Workers

The added step in proving an employer responsible for sexual harassment by its employees puts the pressure on the harassed employee. If you are facing harassment by coworkers on the job, you will need to take some proactive steps to protect your claim.

1. Say Something About the Harassment

Your employer needs to be on notice that sexual harassment is happening. So say something. Tell your supervisor, or your HR department what is happening and give them a chance to respond.

2. Write a a Formal Complaint

The larger your company, the more likely they are to have a formal discrimination policy with reporting procedures. Follow it. Make a formal written complaint and keep a copy for yourself.

3. Document the Employer’s Response

Start gathering documentation to support your sexual harassment claim and your employer’s investigation, or lack thereof. Follow up as often as it takes, in writing or via email, and keep track of every response you receive.

4. Track Continued Sexual Harassment

Along with your formal written complaint and the employer’s response, start tracking any continued sexual harassment happens: who, what, when, where, and who witnessed it. You will need this sexual harassment log to show your employer did not take reasonable steps to resolve the hostile work environment.

5. Get a Sexual Harassment Attorney to Help

Proving an employer responsible for sexual harassment of its employees isn’t easy. Don’t feel like you need to do it alone. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment at work. We can help you stand up to your employer and demand that they protect you from sexual harassment by your coworkers. Whether all it takes is informal negotiations with your company’s attorney, or formal litigation in federal court, we can help you stand up for your rights. Contact us today to schedule a free consultation.

When is it Legal for Women to be Paid Less than Men?

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Employees often don’t like to share information about salary. Some employers even try to forbid it to prevent hard feelings in the workplace. But the secrecy around compensation also allows women to be paid less than men, without anyone realizing it. What can you do if you find out this is happening to you? Is it ever legal for women to be paid less than men for the same work?

In this blog post, I will review the Ninth Circuit Court of Appeals opinion, Rizo v. Yovino, and the exceptions included in the Equal Pay Act. I will explain when the Equal Pay Act makes it legal for women to be paid less than men, and what employees can do to see if those exceptions apply to them.

The Equal Pay Act Protects Against Wage Discrimination

The federal Equal Pay Act ensures that men and women are paid the same compensation for the same work. This doesn’t mean that every server, assembly line operator, or attorney needs to be paid exactly the same wage. But it does mean that women must be paid as much as men for substantially equal work. The Equal Pay Act includes all forms of compensation, including:

  • Salary
  • Hourly wage
  • Overtime pay
  • Bonuses
  • Stock options
  • Profit sharing and bonus plans
  • Life insurance
  • Vacation and holiday pay
  • Expense allowances
  • Hotel accomodations
  • Travel reimbursement
  • Other benefits

In determining whether the EPA has been violated, it is the content of the job that counts, not the title. Courts will look at:

  • The skill, experience, and education required to do the job
  • The physical or mental exertion needed to complete tasks
  • The accountability employees have, including direct reports and additional assigned tasks
  • Working conditions including physical surroundings and potential hazards
  • Other positions within the same business establishment

If an employee believes the EPA has been violated, he or she can file a claim in federal court directly. However, many violations of the Equal Protection Act also amount to gender discrimination under Title VII of the Civil Rights Act. These claims must be filed with the EEOC first, so many employment discrimination attorneys will take EPA cases through the EEOC’s investigation and voluntary settlement process to preserve those claims. If the court finds that an employer willfully violated the Equal Pay Act, the employee could be awarded back pay, raises or additional benefits, penalty fees, attorney fees, and costs.

Exceptions That Make it Legal for Women to Be Paid Less Than Men

A plaintiff in an Equal Pay Act lawsuit only has to prove that she was paid less than her male coworkers for substantially the same work. But that doesn’t mean that every case ends there. Employers can avoid paying damages if they are able to show their compensation fits into one of four exceptions that make it legal for women to be paid less than men:

  1. A seniority system
  2. A merit system
  3. A compensation system based on quantity or quality of production
  4. “A differential based on any other factor other than sex.”

What the last exception means was the topic of a recent Ninth Circuit case, Rizo v. Yovino. The opinion is currently under consideration by the entire en banc panel of the Ninth Circuit. Aileen Rizo was a math consultant for the Fresno County pubic schools. After working there for a time, she discovered that her male counterparts were all paid substantially more than she was.

The district used a “Standard Operation Procedure 1440” to set starting salaries of management-level employees like Rizo. The procedure laid out 12 levels with steps within each. A new employee’s salary was set on the step 5% above his or her last salary. For Rizo, that meant she was paid the lowest starting salary, or $62,733. But others in the same position came in at more than $80,000.

The school district admitted that it paid its male math consultants more than Rizo, but said that its procedure was “based on any other factor other than sex”, specifically the employee’s past wages. The EEOC said that wasn’t enough, because it ran the risk of perpetuating discriminatory wage disparity between men and women across the industry.

The Rizo court said that “an employer could maintain a pay differential based on prior salary (or based on any other facially gender-neutral factor) only if it showed that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as its other practices.'” The school district had argued the business purposes supporting its business policy included:

  • Objectivity in calculating starting salaries
  • Encouraging candidates to leave their current jobs to receive a 5% pay increase
  • Preventing favoritism and ensuring consistency in application
  • The judicious use of taxpayer dollars

But the District Court hadn’t weighed the validity of those purposes, or whether the school district had applied them reasonably, so the Ninth Circuit sent the case back for a more thorough consideration.

What to Do If You Are Facing Wage Discrimination

The Equal Pay Act does a lot to protect the victims of wage discrimination. It puts the onus on the employer to show any discrepancy is excusable. It also allows complainants to go straight to federal court, without pursuing administrative remedies first. However, if you have a claim under the EPA, you need to be prepared for your employer’s defense. That’s where an experienced employment discrimination attorney can help.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you prepare your case to stand up to industry defenses. If you believe that you are being paid less than your counterparts because of your gender, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

Do Men Have a Right to Paternity Leave?

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There is a lot to think about when a man’s partner is expecting a child. Many new fathers want to take time off work to address the practical issues of caring for a newborn, and to bond with their new children. But will doing so put your job at risk? Do men have a right to paternity leave from work?

In this blog post, I will review the federal laws related to parental leave in the United States, including the Family Medical Leave Act. I will discuss the EEOC v. Estee Lauder Companies, Inc., and how Title VII of the Civil Rights Act can be used to protect men’s right to paternity leave. I will also explain when and how an employment attorney can help get fathers time off after their children come home.

Do Men Have a Right to Paternity Leave Under the FMLA?

The answer to the question “Do men have a right to paternity leave?” depends on what you mean by the question. When you are looking into parental leave, it is important to distinguish between paid and unpaid time off. The United States is the only country among 41 nations surveyed by the Organization for Economic Cooperation and Development (OECD) that does not have any level of mandatory paid parental leave. Instead, the decision to offer paid parental leave is left to the individual companies. If they choose not to offer this employment benefit, there is little an employee can do short of finding another job.

However, there is a national right to unpaid parental leave under the Family Medical Leave Act (FMLA). The law requires public agencies, public and private schools , and companies with at least 50 employees to provide employees with up to 12 weeks of unpaid leave each year. This leave can be used for:

  • Serious health conditions
  • Care of a spouse, child or parent with a serious health condition
  • Placement of a foster or adoptive child with the employee
  • Parental leave for the birth and care of a newborn child of the employee

To be eligible, employees must have worked for their employer for at least 12 months and at least 1,250 hours in the past 12 months. They must also work in a location where the company employs at least 50 employees within 75 miles.

Unpaid FMLA leave applies to mothers and fathers, natural and adoptive parents alike. If your family has the financial means to do so, this means that men have the right to up to 12 weeks of paternity leave to connect with their children.

How Can Title VII Help Fathers Seeking Paid Paternity Leave?

Many two-income families would rather not resort to unpaid FMLA leave, especially given the costs connected to bringing home a new child. There may be no universal right to paid paternity leave, but where a company offers paid maternity leave, Title VII of the federal Civil Rights Act requires that benefit to apply to fathers too, regardless of gender.

Earlier in 2017, the Equal Employment Opportunity Commission (EEOC) took Estee Lauder to court on this issue. The EEOC’s complaint said the makeup and skin care manufacturer had violated Title VII and the Equal Pay Act by offering different parental leave benefits to men and women in their employ. Under the company’s parental leave program, Estee Lauder would pay for leave provided to new mothers to recover from childbirth, as well as an additional 6 weeks of parental leave to bond with their children. New fathers were only granted 2 weeks of child bonding time. The lawsuit said that new mothers also receive flexible return-to-work benefits when their maternity leave expired, but fathers didn’t have the same opportunities.

Title VII and the Equal Pay Act prohibits discrimination in pay or benefits based on sex. The EEOC said in its complaint that Estee Lauder’s policy violated those laws by setting different time limits and conditions on maternity leave and paternity leave of their employees. The case is still ongoing, but it makes clear that an employer cannot treat men seeking paternal leave differently because of their sex.

Where to Start to See if You Have a Right to Paternity Leave

If your wife or partner is expecting a child, now is the time to start investigating your right to paternity leave. The employment discrimination attorneys at Eisenberg & Baum, LLP, can help you uncover your options and determine if there are any claims under state or federal laws. We will start by reviewing your contract or employee handbook to see what the policies are at your place of employment. Next, we will see if you qualify for unpaid FMLA leave. We may also be able to negotiate with your employer to correct civil rights violations or other illegal policies, and take the matter to court if necessary. If you need help exercising your right to paternity leave, contact us today to schedule a free consultation.